Trees and Property Rights
The City of Toronto protects trees through its Official Plan, Trees By-law and Tree Protection Policy. Many other cities in southern Ontario have taken similar action. The province has passed a law protecting trees which straddle property lines. You may be surprised to learn how much these laws affect your property rights.
Trees on City Property
Toronto’s Trees By-law (Municipal Code Ch. 813) protects all trees on City “streets”, regardless of size. In older parts of Toronto, the City often owns the first 15 feet or so of what appears to be your front yard. All trees located on City-owned land are considered City trees.
A property owner cannot injure, destroy or remove a tree on City property without obtaining a permit. The City defines injury broadly, to include the impact on roots resulting from construction within 20 feet of large trees, and tree canopies. An owner can only apply for a permit if accompanied by an arborist report, which lists all trees on City property, describes their condition, and sets out measures to protect the trees. Tree removal and replacement is only permitted if there is no reasonable alternative.
Private Tree Protection
The Trees By-law also protects trees on private property, as long as they have a trunk with a diameter of at least 12 inches (30 cm) when measured 4 ½ feet above the ground (1.4m). Again, you can apply for a permit to destroy or injure such trees, providing they are accompanied by an arborist report. An arborist must show all significant trees on the owner’s property and for a distance of 20 feet on adjacent lots.
If Urban Forestry staff refuse to issue a permit to injure or destroy a tree, an owner can appeal to the appropriate community council. Councilors generally support staff recommendations, unless there are unusual circumstances.
Tree Protection Guarantees & Fines
Urban Forestry can require an applicant for a permit to provide a Tree Protection Guarantee & Tree Planting Security Deposit, including the appraised value of the tree to be protected, removal costs, and tree replacement costs. The cost of such Guarantees may exceed $11,000 for each mature tree for which a permit is obtained, and will not be fully returned until all construction is completed and the City determines replacement trees are healthy 2 years after planting.
A person who is convicted of an offence under the Trees By-law is liable to a minimum fine of $500 and a maximum fine of $100,000 per tree.
Boundary Trees & Neighbour Trees
According to Ontario’s Forestry Act, if a tree trunk grows above both sides of a property line, between the City and a private owner, or two private owners, the tree is considered a boundary tree. Neither co-owner can injure or destroy a boundary tree without the consent of their neighbour. The City also requires applicants to provide notice of applications concerning trees on adjacent properties (neighbour trees). However, whether a tree is a boundary tree is determined by a property survey and the courts, rather than City staff or planning tribunals.
Consultation with Lawyers & Arborists
You should consult a lawyer or arborist before you construct an addition, repave your driveway, or undertake major landscaping changes, to ensure compliance with the Tree By-law.
It is particularly important to consult such experts if you are an owner contemplating changes that require minor variances from the zoning by-law, or consent to create a new lot. Objectors will likely raise concerns about the loss of trees. The Toronto Local Appeal Body (TLAB) and Local Planning Appeal Tribunal (LPAT) increasingly take tree preservation and replacement into account when they hear appeals from decisions in Toronto and other municipalities concerning minor variance and consent applications. Evidence from an arborist and submissions concerning canopy preservation can help you get the desired result.
Ron Kanter practices municipal and planning law at Macdonald Sager, and can be reached at [email protected]
This article is not intended to serve as a comprehensive treatment of the topic and is not legal advice. All legal matters are dealt with pursuant to their specific facts and circumstance. Nothing replaces retaining a qualified, competent lawyer.